Housing needs and household members

Jones v Luton Borough Council [2016] EWHC 2036 (Admin)

This was a judicial review of a decision by Luton Council Housing Appeals and Review Panel not to offer Mr Jones a tenancy of the property of which Mr J’s late father was the tenant, but instead offer a one bed property.

Mr J’s mother and father had a joint tenancy of the two bed property. On the death of Mr J’s mother, his father succeeded to a sole tenancy by survivorship. Mr J had moved in in 1997 at the start of his parent’s tenancy. In 2011, Mr J entered a civil partnership with Mr P Town. Mr J and Mr T lived at the property with Mr J’s parents, caring for Mr J’s mother during her ill health. The mother died in 2012. By late 2014, Mr J’s father became ill, and he died in May 2015.

In March 2015 Mr T’s brother, Jake Town, had moved into the property, following the loss of his home. Jake Town has complex health issues including brittle diabetes and frequent episodes of diabetic ketoacidosis necessitating emergency hospital admissions, and was looked after by Mr J and his brother Mr T.

Following the death of Mr J’s father, the council served notice to quit, expiring in August 2015.  The Council’s allocation policy includes the following, where there is no statutory right to succession:

“Non-Successors
If a tenant of the Council dies and there is another member of the household who does not have the right to succeed but who:
Had been living with the tenant for the year before the tenant’s death (this does not include lodgers or B&B guests) or
Had been resident and looking after the tenant for the year before the tenant’s death or
Has lawfully accepted responsibility for the tenant’s dependants
The Council will consider offering a new tenancy where the landlord is satisfied this is a priority when viewed in the context of other demands on housing needs in the area. If a new tenancy is considered, this could be either in the same accommodation or in suitable alternative accommodation.”

Following both a consideration of Mr Jones’ position, then an appeal, the Council decided:

In recognition of the fact that Jack lived in the property and was the main carer for his father rather than require him to seek his own accommodation, the Housing Needs Review Panel have agreed to make a direct let of a one bedroom property to Jack and his partner Philip. It was agreed that this would be within the Runfold or Saints area of Luton as this area is where Jack had resided most of his life. No provision was made for Jack’s partner’s brother as he had only moved into the property two months before the death of Mr. Peter Jones and was not considered part of the family unit. However, it was acknowledged that should he apply to be rehoused in his own right he could be given priority as he was threatened with homelessness and he therefore had a reasonable chance of securing at least a bedsit within social housing within a period of six months or could be assisted with a deposit in the private rented sector for the same.

The judicial review was brought on the basis that:

24. The HARP failed to consider Mr. Jake Town adequately: The HARP incorrectly decided that Mr. Jake Town should not be considered a permanent member of the household.
25. The HARP set a threshold that Mr. Philip Town and Mr. Jake Town needed to be declared by the Claimant as residing at the Property for the purposes of Housing Benefit calculations. This set the threshold too high for the determination of whether either are members of the household.
26. Further or alternatively, the HARP decided that Mr. Jake Town was not dependent on the Claimant and Mr Philip Town, despite this conclusion not being open to them on the evidence before them.
27. Further or alternately, the Defendant failed to take into account adequately the Article 8 rights of the Claimant and/or Mr. Philip Town and/or Mr. Jake Town by adopting a construction of Article 8 rights which was too narrow and did not recognise that Mr. Jake Town was a member of the Claimant’s family.

This got short shrift from the High Court.

The council’s policy was clear. Jake would not be regarded as part of the household as he was an adult and had not resided in the property for a year before the tenant’s death.

On the engagement of Art 8, Kugathas v The Secretary of State for the Home Department [2003] EWCA Civ 31 was followed, per Seldley LJ:

“Mr. Tam relies in particular on the Commission’s decision in S v United Kingdom (1984) 40 DR 196. At page 198 of the report, the Commission said:

Generally, the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties.”

This, while it is not black-letter law, sets out what I would accept is a proper approach.”

This was not an exceptional case. The medical letters provided in support of Jake had not said that he would be incapable of living independently.

While a later letter did make that assertion, on the basis of Jake’s diabetes, the Council’s position on Jake was sufficient to allay those concerns:

  1. In my view, the HARP was entitled to form the view based upon the G.P.’s letter that the real risk to Jake Town would be if he were made homeless. In that regard I pressed Mr Birks as to the Defendant’s position as to Jake Town’s accommodation. He told me that if as a result of these proceedings the Claimant and his partner go into one-bedroom accommodation, and if in those circumstances Jake Town were to take up accommodation in the living room of that one bedroom accommodation, the Defendant would be obliged to consider any application on behalf of Jake Town for accommodation as a homeless person. In such an application Jake Town would have to show that he had no accommodation reasonably available to him. Living on a sofa in the living room of a one-bedroom flat would not in itself prevent him being regarded as homeless.
  2. Clearly, that is far from being a copper bottomed guarantee of how the Defendant would treat an application for accommodation as a homeless person, but it is, in my view, sufficient to answer the concerns expressed by the G.P.
  3. In my judgment, the HARP was entitled on the evidence before it to take the view that Jake Town’s medical condition was not sufficient to render him a dependent member of the family of the Claimant.

While ‘in a better world’ the provision of a two bed property would be desirable, the pressures on housing stock are what they are. Claim dismissed.

Comment

I’m not sure that the court quite grasped the significance of the Council’s statement in respect of Jake’s homeless status. For anyone involved in homelessness who is not a High Court Judge, it is a pretty clear statement that they would not regard Jake as homeless unless Mr J & Mr T threw him out. In short, not only would Mr J & Mr T have to leave their home for a one bed flat, but would have to throw out Mr T’s severely unwell brother for him to have any hope of homeless assistance from the council.

But, as the Court effectively observes, that is where we are.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London.
You can find him on Linkedin and on
Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.

Posted in Allocation, Homeless, Housing law - All, secure-tenancy, Succession.

One Comment

  1. It’s really awkward. I’ve worked for a local authority where we used our discretion to allow family members to stay in the family home when they technically have not had a legal right to succeed the tenancy. Similarly we refused such cases even when they’ve seemed totally genuine. It’s always a difficult call. You wonder had Jake been residing there for 6 or 8 months whether they would have made the same decision. Like you say Giles, the court certainly missed the significance of the council’s statement. They’re only going to count him as homeless if he “apply to be rehoused in his own right” (i.e. if his brother kicks him out).

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